A LEGAL ANOMALY

Hokitika Guardian, 26 April 1921, Page 1

A LEGAL ANOMALY

INDIAN AND DOMINION DIVORCES LONDON, March 11. Sir Henry Duke, the President of the Divorce Division, decided yesterday that Indian Courts cannot dissolve a marriage, contracted in India, between persons resident in that country but legally domiciled in England. If this decision be a good one from the legal point of view—a question which docs not seem to lie in doubt —then it has been good any time during the (iffy-two years that have elapsed since the Indian Divorce Act was passed. There must be many hundreds of cases in which people divorced in India have married again, to find, now, after the lapse of many years, that apparently their unions are bigamous ,md children of the second marriage illegitimate.. But India is not the only country affected by this decision. Both Australia and New Zealand authorise the Courts to grant divorces to deserted wives whose husbands have changed their domicile. The result is that, unless tlier is Imperial legislation in which the Dominions concur to remedy the conflict of laws, persons who have been divorced in the Dominions will be guilty of bigamy if they marry again in England. i The case which has brought this strange legal anomaly to light was t of Captain Reginald Keyes, of Dartford, Kent, who petitioned for a divorce from Mrs Annie Borah Keyes on the ground of her misconduct with Mr Gerald Cecil Gray. The petitioner obtained a divorce from his wife in the Punjab High Court in November, 1918. At its hearing, Sir Erie Richards, who appeared for the Secretary for India, said that the question raised was one of great importance. If it were laid down that the divorces granted for more than fifty years in India wore invalid it would create a very difficult ptosilion. There had been many remarriages, and children had been born, whose legitimacy depended upon the decrees of the Tndinn courts.

The President, giving judgment, said that the questions at issue wore whether the Governor-General of Tndia in Council was authorised ’yv the East Indian Council's Act of 1861 to establish Courts with power to dissolve the marriages of persons domiciled elsewhere, and whether the. authority, if any. thereby given to the GovernorGeneral in Council was so exorcised, on the enactment by (lie Imperial Parliament. of the Indian Divorce Act. 1869 ns to enable the Chief Court of the Punjab to make decrees for the dissolution of the marriages of such persons. No one would suppose that the power contained in Section 29 of the Act of 1861 should extend to the making of a law which would affect the heritable capacity of a man resident in India in respect of land in England, or control bis conduct in any matter of purely English concern. Tie bad no doubt that to create a, jurisdiction in divorce such as was exorcised in this country was within the powers of Ihc Governor-General in Council by the Act of 1861. But that Act did not warrant the making of a law to empower the Courts in Tndia to decree, dissolution of the marriage of persons not domiciled within their jurisdiction. The Indian Divorce Act of 1869 furnished no sufficient authority for the divorce of the petitioner and the respondent by the Chief Court of the Punjab. The President, therefore found that the marriage of the petitioner and the respondent solemnised in Calcutta wn. still subsisting. The petitioner was now entitled to a decree nisi which would be granted with costs against the corespondent.

This decision necessitates an Act of Parliament, to legislate the status of those people who have married again after obtaining a divorce mi Tndia and also to legitimise their children, dating from the passing of the Midiari Divorce Act of ISG9. Tho Act will also have to be extended to the smaller number of cases arising from divorces in Australia and New Zealand in grounds based on domicile.